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Gary Burnette v. City of Philadelphia

April 5, 2013


The opinion of the court was delivered by: Baylson, J.



This action arises out of injuries suffered by Plaintiff, Gary Burnette, when driving his motorcycle northbound Roosevelt Boulevard, Philadelphia, in April 2011. As Burnette approached the intersection with Lexington Avenue, he collided with a woman attempting to traverse the twelve-lane Boulevard after dismounting a bus that had been operated by Defendant, Southeastern Pennsylvania Transportation Association ("SEPTA"). Burnette brings claims against SEPTA, the Pennsylvania Department of Transportation ("PennDOT"), and the City of Philadelphia, under 42 U.S.C. § 1983. He alleges a violation of his right to due process under the Fourteenth Amendment, on account of Defendants' creation of an unjustifiably dangerous condition on Roosevelt Boulevard. Plaintiff also brings negligence claims against Defendants under Pennsylvania law. Defendants filed Motions to Dismiss under Fed. R. Civ. P. 12(b)(6) (see ECF 8, 10 & 11), arguing that with respect to the cause of action under Section 1983, Plaintiff failed to state a claim upon which relief can be granted. For the reasons below, Defendants' motions are GRANTED and the Section 1983 claim is dismissed. Plaintiff's state law claims are remanded to state court.

II.Facts and Procedural History

On April 11, 2011, a SEPTA bus driver was driving a bus northbound on Roosevelt Boulevard, on the strip of roadway between Cottman Avenue and Lexington Avenue. After passing Cottman Avenue and approaching the intersection with Lexington, the driver allegedly refused to "permit its passengers to exit the bus at the Septa Bus Stop . . . which was nearest to the Designated Pedestrian Crosswalk" at Lexington Avenue, and instead forced the passengers "to exit the Septa bus at the first Bus Stop . . . thereby placing its passengers away from the Designated Crosswalk, in a poorly lit, dangerous area." (Second Amended Complaint, at 3-4) (ECF 7). The bus stop at which the driver required the passengers to exit was south of the stop Plaintiff claims was "nearest to the Designated Pedestrian Crosswalk." (Id. at 3). It was also, allegedly, an area "not designated for pedestrian crossing." (Id. at 4). Plaintiff contends the bus driver had a habit of requiring passengers to exit at this first stop, rather than at the one next to a safe, pedestrian crosswalk. (Id. at 6).

A passenger, Giselle Moya, exited the bus and attempted to cross Roosevelt Boulevard. Because her crossing was outside of "the designated crosswalk," it entailed traversing twelve lanes of traffic on Roosevelt Boulevard. (Id.). Plaintiff, Gary Burnette, was driving his motorcycle northbound on Roosevelt Boulevard at the time. As he came around the bend towards Lexington Avenue, he was unable to detect Moya "in the middle of the northbound lanes." (Id.). He collided with Moya and as a result, sustained physical injuries. (Id.). Ms. Goya was pregnant at the time of the accident and was killed as a result. (Pl. Response in Opp. to PennDOT's Motion to Dismiss, at 1) (ECF 12).

The Complaint includes four causes of action against the City of Philadelphia, PennDOT, and SEPTA: (1) deprivation by all Defendants of Plaintiff's civil rights under the Fourteenth Amendment, in contravention of 42 U.S.C. § 1983, on account of Defendants' not acting to mitigate a known, dangerous condition in the portion of Roosevelt Boulevard where the accident occurred, and on account of their not enacting policies and procedures regarding bus driver protocol for this strip of roadway;*fn1 (2) negligence, by the City of Philadelphia, in creating a dangerous condition on the roadway which it knew or should have known existed; (3) negligence, by PennDOT, for the same conduct; (4) negligence, by SEPTA, in failing to properly train its bus drivers on acceptable manners of making stops on the area of Roosevelt Boulevard involved in this accident, which should entail not forcing passengers to exit buses at locations "where it was known and/or foreseeable . . . that exiting Passengers were then unlawfully and unsafely encouraged . . . to attempt to cross twelve (12) lanes of highly traveled roadway . . ." (Second Amended Complaint, at 6-14) (ECF 4).

Plaintiff filed a complaint on October 17, 2012, in the Philadelphia Court of Common Pleas, against the City of Philadelphia, the Pennsylvania Department of Transportation, and SEPTA. (Notice of Removal, Ex. A) (ECF 1). On November 14, 2012, SEPTA filed preliminary objections. (Id. Ex. E). On December 21, 2012, Plaintiff filed an amended complaint in the Court of Common Pleas, adding a fourth count against all Defendants that alleged a violation of 42 U.S.C. § 1983. (Id. Ex. I). SEPTA removed the case to this Court on January 17, 2013. (ECF 1).

All three Defendants filed Motions to Dismiss on January 24, 2013, requesting that the Court dismiss Count IV of the Amended Complaint, brought under 42 U.S.C. § 1983, for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (ECF 4, 5 & 6). Plaintiff filed a Second Amended Complaint on February 12, 2013, although without having obtained consent of the other parties or leave by this Court. (ECF 7). Defendants filed new Motions to Dismiss, against requesting that the Section 1983 claim, now Count I, be dismissed. (ECF 8, 10 & 11). Plaintiff filed Responses in Opposition (ECF 12, 13 & 15); Defendants filed Replies (ECF 14 & 16); Plaintiff filed a Sur-Reply (ECF 17), which the Court subsequently approved (ECF 21); and Defendants filed a Response to the Sur-Reply (ECF 22).

III.Legal Standards

To survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual allegations that "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint will satisfy this threshold test for facial plausibility if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Additionally, when the facts alleged equally support an "obvious alternative explanation" for what transpired, the plaintiff will not cross the plausibility threshold. Id. at 1951-52. "A complaint which pleads facts 'merely consistent with a defendant's liability, [] stops short of the line between possibility and plausibility of entitlement to relief.'" Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

When presented with a motion to dismiss under Rule 12(b)(6), a district court should conduct a two part analysis. First, it should separate the factual and legal elements of a claim and accept all of the well-pleaded facts as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Second, the court should determine whether the factual allegations are sufficient to show that the plaintiff has a "plausible claim for relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). See generally Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (holding that in reviewing Rule 12(b)(6) motions to dismiss, the court first "review[s] the complaint to strike conclusory allegations" and then evaluates whether the "well-pleaded components of the complaint" establish "the elements of the claim").

In this matter, the Court must determine if Plaintiff's federal claim under 42 U.S.C. § 1983 is plausible. "Section 1983 provides a remedy against 'any person' who, under color of state law, deprives another of rights protected by the Constitution." Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992) (quoting 42 U.S.C. § 1983)); see also Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) ("Section 1983 does not, by its own terms, create substantive rights; it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws."). Plaintiff contends Defendants violated his due process rights under the Fourteenth Amendment by subjecting him to a state-created danger. (Second Amended Complaint, at 7) (ECF 7).

In the Third Circuit, the "state-created danger" theory is a "viable mechanism for establishing a constitutional violation." Kneipp, 95 F.3d at 1211. The theory is a narrow exception to the general rule that the Due Process Clause does not impose "affirmative obligation[s]" on state actors to "guarantee . . . certain minimal levels of safety and security." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 ...

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